Federalist No. 84

Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
From McLEAN'S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

IN THE course of the foregoing review of the Constitution, I
have taken notice of, and endeavored to answer most of the
objections which have appeared against it. There, however, remain a
few which either did not fall naturally under any particular head
or were forgotten in their proper places. These shall now be
discussed; but as the subject has been drawn into great length, I
shall so far consult brevity as to comprise all my observations on
these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the
plan of the convention contains no bill of rights. Among other
answers given to this, it has been upon different occasions
remarked that the constitutions of several of the States are in a
similar predicament. I add that New York is of the number. And yet
the opposers of the new system, in this State, who profess an
unlimited admiration for its constitution, are among the most
intemperate partisans of a bill of rights. To justify their zeal in
this matter, they allege two things: one is that, though the
constitution of New York has no bill of rights prefixed to it, yet
it contains, in the body of it, various provisions in favor of
particular privileges and rights, which, in substance amount to the
same thing; the other is, that the Constitution adopts, in their
full extent, the common and statute law of Great Britain, by which
many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the
convention contains, as well as the constitution of this State, a
number of such provisions.

Independent of those which relate to the structure of the
government, we find the following: Article 1, section 3, clause 7
"Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any
office of honor, trust, or profit under the United States; but the
party convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law.''
Section 9, of the same article, clause 2 "The privilege of the
writ of habeas corpus shall not be suspended, unless when in cases
of rebellion or invasion the public safety may require it." Clause
3 "No bill of attainder or ex-post-facto law shall be passed.''
Clause 7 "No title of nobility shall be granted by the United
States; and no person holding any office of profit or trust under
them, shall, without the consent of the Congress, accept of any
present, emolument, office, or title of any kind whatever, from any
king, prince, or foreign state." Article 3, section 2, clause 3
"The trial of all crimes, except in cases of impeachment, shall be
by jury; and such trial shall be held in the State where the said
crimes shall have been committed; but when not committed within any
State, the trial shall be at such place or places as the Congress
may by law have directed." Section 3, of the same article
"Treason against the United States shall consist only in levying
war against them, or in adhering to their enemies, giving them aid
and comfort. No person shall be convicted of treason, unless on the
testimony of two witnesses to the same overt act, or on confession
in open court." And clause 3, of the same section "The Congress
shall have power to declare the punishment of treason; but no
attainder of treason shall work corruption of blood, or forfeiture,
except during the life of the person attainted." It may well be a
question, whether these are not, upon the whole, of equal
importance with any which are to be found in the constitution of
this State. The establishment of the writ of habeas corpus, the
prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO
WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are
perhaps greater securities to liberty and republicanism than any it
contains. The creation of crimes after the commission of the fact,
or, in other words, the subjecting of men to punishment for things
which, when they were done, were breaches of no law, and the
practice of arbitrary imprisonments, have been, in all ages, the
favorite and most formidable instruments of tyranny. The
observations of the judicious Blackstone,1 in reference to the
latter, are well worthy of recital: "To bereave a man of life,
Usays he,e or by violence to confiscate his estate, without
accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout
the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore A MORE
DANGEROUS ENGINE of arbitrary government." And as a remedy for
this fatal evil he is everywhere peculiarly emphatical in his
encomiums on the habeas-corpus act, which in one place he calls
"the BULWARK of the British Constitution.''2

Nothing need be said to illustrate the importance of the
prohibition of titles of nobility. This may truly be denominated
the corner-stone of republican government; for so long as they are
excluded, there can never be serious danger that the government
will be any other than that of the people.

To the second that is, to the pretended establishment of the
common and state law by the Constitution, I answer, that they are
expressly made subject "to such alterations and provisions as the
legislature shall from time to time make concerning the same.''
They are therefore at any moment liable to repeal by the ordinary
legislative power, and of course have no constitutional sanction.
The only use of the declaration was to recognize the ancient law
and to remove doubts which might have been occasioned by the
Revolution. This consequently can be considered as no part of a
declaration of rights, which under our constitutions must be
intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights
are, in their origin, stipulations between kings and their
subjects, abridgements of prerogative in favor of privilege,
reservations of rights not surrendered to the prince. Such was
MAGNA CHARTA, obtained by the barons, sword in hand, from King
John. Such were the subsequent confirmations of that charter by
succeeding princes. Such was the PETITION OF RIGHT assented to by
Charles I., in the beginning of his reign. Such, also, was the
Declaration of Right presented by the Lords and Commons to the
Prince of Orange in 1688, and afterwards thrown into the form of an
act of parliament called the Bill of Rights. It is evident,
therefore, that, according to their primitive signification, they
have no application to constitutions professedly founded upon the
power of the people, and executed by their immediate
representatives and servants. Here, in strictness, the people
surrender nothing; and as they retain every thing they have no need
of particular reservations. "WE, THE PEOPLE of the United States,
to secure the blessings of liberty to ourselves and our posterity,
do ORDAIN and ESTABLISH this Constitution for the United States of
America." Here is a better recognition of popular rights, than
volumes of those aphorisms which make the principal figure in
several of our State bills of rights, and which would sound much
better in a treatise of ethics than in a constitution of
government.

But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which
is merely intended to regulate the general political interests of
the nation, than to a constitution which has the regulation of
every species of personal and private concerns. If, therefore, the
loud clamors against the plan of the convention, on this score, are
well founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them
contain all which, in relation to their objects, is reasonably to
be desired.

I go further, and affirm that bills of rights, in the sense and
to the extent in which they are contended for, are not only
unnecessary in the proposed Constitution, but would even be
dangerous. They would contain various exceptions to powers not
granted; and, on this very account, would afford a colorable
pretext to claim more than were granted. For why declare that
things shall not be done which there is no power to do? Why, for
instance, should it be said that the liberty of the press shall not
be restrained, when no power is given by which restrictions may be
imposed? I will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power.
They might urge with a semblance of reason, that the Constitution
ought not to be charged with the absurdity of providing against the
abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear
implication, that a power to prescribe proper regulations
concerning it was intended to be vested in the national government.
This may serve as a specimen of the numerous handles which would be
given to the doctrine of constructive powers, by the indulgence of
an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place,
I observe, that there is not a syllable concerning it in the
constitution of this State; in the next, I contend, that whatever
has been said about it in that of any other State, amounts to
nothing. What signifies a declaration, that "the liberty of the
press shall be inviolably preserved''? What is the liberty of the
press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and
from this I infer, that its security, whatever fine declarations
may be inserted in any constitution respecting it, must altogether
depend on public opinion, and on the general spirit of the people
and of the government.3 And here, after all, as is intimated upon
another occasion, must we seek for the only solid basis of all our
rights.

There remains but one other view of this matter to conclude the
point. The truth is, after all the declamations we have heard, that
the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in
Great Britain form its Constitution, and conversely the
constitution of each State is its bill of rights. And the proposed
Constitution, if adopted, will be the bill of rights of the Union.
Is it one object of a bill of rights to declare and specify the
political privileges of the citizens in the structure and
administration of the government? This is done in the most ample
and precise manner in the plan of the convention; comprehending
various precautions for the public security, which are not to be
found in any of the State constitutions. Is another object of a
bill of rights to define certain immunities and modes of
proceeding, which are relative to personal and private concerns?
This we have seen has also been attended to, in a variety of cases,
in the same plan. Adverting therefore to the substantial meaning of
a bill of rights, it is absurd to allege that it is not to be found
in the work of the convention. It may be said that it does not go
far enough, though it will not be easy to make this appear; but it
can with no propriety be contended that there is no such thing. It
certainly must be immaterial what mode is observed as to the order
of declaring the rights of the citizens, if they are to be found in
any part of the instrument which establishes the government. And
hence it must be apparent, that much of what has been said on this
subject rests merely on verbal and nominal distinctions, entirely
foreign from the substance of the thing.

Another objection which has been made, and which, from the
frequency of its repetition, it is to be presumed is relied on, is
of this nature: "It is improper Usay the objectorse to confer such
large powers, as are proposed, upon the national government,
because the seat of that government must of necessity be too remote
from many of the States to admit of a proper knowledge on the part
of the constituent, of the conduct of the representative body.''
This argument, if it proves any thing, proves that there ought to
be no general government whatever. For the powers which, it seems
to be agreed on all hands, ought to be vested in the Union, cannot
be safely intrusted to a body which is not under every requisite
control. But there are satisfactory reasons to show that the
objection is in reality not well founded. There is in most of the
arguments which relate to distance a palpable illusion of the
imagination. What are the sources of information by which the
people in Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of
personal observation they can have no benefit. This is confined to
the citizens on the spot. They must therefore depend on the
information of intelligent men, in whom they confide; and how must
these men obtain their information? Evidently from the complexion
of public measures, from the public prints, from correspondences
with theirrepresentatives, and with other persons who reside at the
place of their deliberations. This does not apply to Montgomery
County only, but to all the counties at any considerable distance
from the seat of government.

It is equally evident that the same sources of information would
be open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a
prompt communication which distance may be supposed to create, will
be overbalanced by the effects of the vigilance of the State
governments. The executive and legislative bodies of each State
will be so many sentinels over the persons employed in every
department of the national administration; and as it will be in
their power to adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior of
those who represent their constituents in the national councils,
and can readily communicate the same knowledge to the people. Their
disposition to apprise the community of whatever may prejudice its
interests from another quarter, may be relied upon, if it were only
from the rivalship of power. And we may conclude with the fullest
assurance that the people, through that channel, will be better
informed of the conduct of their national representatives, than
they can be by any means they now possess of that of their State
representatives.

It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions
that affect the general liberty and prosperity, have the same
interest with those who are at a distance, and that they will stand
ready to sound the alarm when necessary, and to point out the
actors in any pernicious project. The public papers will be
expeditious messengers of intelligence to the most remote
inhabitants of the Union.

Among the many curious objections which have appeared against
the proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the
debts due TO the United States. This has been represented as a
tacit relinquishment of those debts, and as a wicked contrivance to
screen public defaulters. The newspapers have teemed with the most
inflammatory railings on this head; yet there is nothing clearer
than that the suggestion is entirely void of foundation, the
offspring of extreme ignorance or extreme dishonesty. In addition
to the remarks I have made upon the subject in another place, I
shall only observe that as it is a plain dictate of common-sense,
so it is also an established doctrine of political law, that
"STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM
ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL
GOVERNMENT.''4 The last objection of any consequence, which I at
present recollect, turns upon the article of expense. If it were
even true, that the adoption of the proposed government would
occasion a considerable increase of expense, it would be an
objection that ought to have no weight against the plan.

The great bulk of the citizens of America are with reason
convinced, that Union is the basis of their political happiness.
Men of sense of all parties now, with few exceptions, agree that it
cannot be preserved under the present system, nor without radical
alterations; that new and extensive powers ought to be granted to
the national head, and that these require a different organization
of the federal government a single body being an unsafe depositary
of such ample authorities. In conceding all this, the question of
expense must be given up; for it is impossible, with any degree of
safety, to narrow the foundation upon which the system is to stand.
The two branches of the legislature are, in the first instance, to
consist of only sixty-five persons, which is the same number of
which Congress, under the existing Confederation, may be composed.
It is true that this number is intended to be increased; but this
is to keep pace with the progress of the population and resources
of the country. It is evident that a less number would, even in the
first instance, have been unsafe, and that a continuance of the
present number would, in a more advanced stage of population, be a
very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One
source indicated, is the multiplication of offices under the new
government. Let us examine this a little.

It is evident that the principal departments of the
administration under the present government, are the same which
will be required under the new. There are now a Secretary of War, a
Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a
Board of Treasury, consisting of three persons, a Treasurer,
assistants, clerks, etc. These officers are indispensable under any
system, and will suffice under the new as well as the old. As to
ambassadors and other ministers and agents in foreign countries,
the proposed Constitution can make no other difference than to
render their characters, where they reside, more respectable, and
their services more useful. As to persons to be employed in the
collection of the revenues, it is unquestionably true that these
will form a very considerable addition to the number of federal
officers; but it will not follow that this will occasion an
increase of public expense. It will be in most cases nothing more
than an exchange of State for national officers. In the collection
of all duties, for instance, the persons employed will be wholly of
the latter description. The States individually will stand in no
need of any for this purpose. What difference can it make in point
of expense to pay officers of the customs appointed by the State or
by the United States? There is no good reason to suppose that
either the number or the salaries of the latter will be greater
than those of the former.

Where then are we to seek for those additional articles of
expense which are to swell the account to the enormous size that
has been represented to us? The chief item which occurs to me
respects the support of the judges of the United States. I do not
add the President, because there is now a president of Congress,
whose expenses may not be far, if any thing, short of those which
will be incurred on account of the President of the United States.
The support of the judges will clearly be an extra expense, but to
what extent will depend on the particular plan which may be adopted
in regard to this matter. But upon no reasonable plan can it amount
to a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense
that may attend the establishment of the proposed government. The
first thing which presents itself is that a great part of the
business which now keeps Congress sitting through the year will be
transacted by the President. Even the management of foreign
negotiations will naturally devolve upon him, according to general
principles concerted with the Senate, and subject to their final
concurrence. Hence it is evident that a portion of the year will
suffice for the session of both the Senate and the House of
Representatives; we may suppose about a fourth for the latter and a
third, or perhaps half, for the former. The extra business of
treaties and appointments may give this extra occupation to the
Senate. From this circumstance we may infer that, until the House
of Representatives shall be increased greatly beyond its present
number, there will be a considerable saving of expense from the
difference between the constant session of the present and the
temporary session of the future Congress.

But there is another circumstance of great importance in the
view of economy. The business of the United States has hitherto
occupied the State legislatures, as well as Congress. The latter
has made requisitions which the former have had to provide for.
Hence it has happened that the sessions of the State legislatures
have been protracted greatly beyond what was necessary for the
execution of the mere local business of the States. More than half
their time has been frequently employed in matters which related to
the United States. Now the members who compose the legislatures of
the several States amount to two thousand and upwards, which number
has hitherto performed what under the new system will be done in
the first instance by sixty-five persons, and probably at no future
period by above a fourth or fifth of that number. The Congress
under the proposed government will do all the business of the
United States themselves, without the intervention of the State
legislatures, who thenceforth will have only to attend to the
affairs of their particular States, and will not have to sit in any
proportion as long as they have heretofore done. This difference in
the time of the sessions of the State legislatures will be clear
gain, and will alone form an article of saving, which may be
regarded as an equivalent for any additional objects of expense
that may be occasioned by the adoption of the new system.

The result from these observations is that the sources of
additional expense from the establishment of the proposed
Constitution are much fewer than may have been imagined; that they
are counterbalanced by considerable objects of saving; and that
while it is questionable on which side the scale will preponderate,
it is certain that a government less expensive would be incompetent
to the purposes of the Union.

PUBLIUS.

1. Vide Blackstone's "Commentaries," vol. 1., p. 136.

2. Vide Blackstone's "Commentaries," vol. iv., p. 438.

3. To show that there is a power in the Constitution by which
the liberty of the press may be affected, recourse has been had to
the power of taxation. It is said that duties may be laid upon the
publications so high as to amount to a prohibition. I know not by
what logic it could be maintained, that the declarations in the
State constitutions, in favor of the freedom of the press, would be
a constitutional impediment to the imposition of duties upon
publications by the State legislatures. It cannot certainly be
pretended that any degree of duties, however low, would be an
abridgment of the liberty of the press. We know that newspapers are
taxed in Great Britain, and yet it is notorious that the press
nowhere enjoys greater liberty than in that country. And if duties
of any kind may be laid without a violation of that liberty, it is
evident that the extent must depend on legislative discretion,
respecting the liberty of the press, will give it no greater
security than it will have without them. The same invasions of it
may be effected under the State constitutions which contain those
declarations through the means of taxation, as under the proposed
Constitution, which has nothing of the kind. It would be quite as
significant to declare that government ought to be free, that taxes
ought not to be excessive, etc., as that the liberty of the press
ought not to be restrained.